Lafferty v. Jones

316 A.3d 742

225 Conn.App. 552

Erica LAFFERTY et al.

v.Alex Emric JONES et al.

(AC 46194)

Appellate Court of Connecticut.

Argued January 2, 2024

Officially Released May 28, 2024

Christopher T. DeMatteo, for the appellant (plaintiff in error Norman A. Pattis).

Brian B. Staines, chief disciplinary counsel, for the appellee (defendant in error Office of Chief Disciplinary Counsel).

Bright, C. J., and Moll and Prescott, Js.

MOLL, J.

₅₅₇The plaintiff in error, Norman A. Pattis, a Connecticut attorney and counsel of record for the defendants, Alex Emric Jones and Free Speech Systems, LLC,¹ in the underlying consolidated tort actions² arising out of the mass shooting at Sandy Hook Elementary School, filed this writ of error challenging the order of the trial court suspending him from the practice of law for a period of six months after determining that he had violated the Rules of Professional Conduct. Pattis claims that the court (1) violated his procedural due process rights in initiating, sua sponte, disciplinary proceedings against him, pursuant to its inherent authority to discipline attorneys, on the basis of conduct that occurred outside of its presence, (2) improperly denied his motion to disqualify the Honorable Barbara N. Bellis from presiding over the disciplinary proceedings, (3) improperly determined that he had violated the Rules of Professional Conduct, and (4) imposed an arbitrary and disproportionate disciplinary order. We reject Pattis’ first two claims, but we conclude that the court incorrectly found that he violated certain provisions of the Rules of Professional Conduct. Accordingly, we ₅₅₈grant in part the writ of error and remand the matter to the court to vacate the improper findings, as well as the attendant disciplinary order, and to conduct a new hearing on sanctions before a different judge.

The following facts and procedural history, as set forth by the trial court in its decision, as set forth by this court in prior decisions, or as are undisputed in the record, are relevant to our resolution of this writ of error. "On December 14, 2012, Adam Lanza entered Sandy Hook Elementary School (Sandy Hook), and thereafter shot and killed twenty first-grade children and six adults, in addition to wounding two other victims who survived the attack. In the underlying consolidated actions, the plaintiffs, consisting of a first responder, who was not a victim of the Sandy Hook shooting but was depicted in the media following the shooting, and the immediate family members of five of the children, one educator, the principal of Sandy Hook, and a school psychologist who were killed in the shooting,³ brought these separate actions ….

"In the complaints, the plaintiffs alleged that [Jones] hosts a nationally syndicated radio program and owns ₅₅₉and operates multiple Internet websites that hold themselves out as news and journalism, platforms. The plaintiffs further alleged that [Jones] began publishing content related to the Sandy Hook shooting on his radio and Internet platforms and circulated videos on his YouTube channel. Specifically, the plaintiffs alleged that, between December 19, 2012, and June 26, 2017, [Jones] used his Internet and radio platforms to spread the message that the Sandy Hook shooting was a staged event to the millions of his weekly listeners and subscribers. The complaints each consisted of five counts, including causes of action sounding in invasion of privacy by false light, defamation and defamation per se, intentional infliction of emotional distress, negligent infliction of emotional distress,⁴ and a violation of the Connecticut Unfair Trade Practices Act, General Statutes § 42-110a et seq."⁵ (Citation omitted; footnotes added.) Lafferty v. Jones, 222 Conn. App. 855, 859-60, 307 A.3d 923 (2023).

As the trial court, Bellis, J., set forth in its decision, "[o]n February 22, 2019, the court granted [a] motion for protective order filed by the Jones defendants, which ₅₆₀allowed, inter aha, the plaintiffs’ medical and/or mental health records to be designated as confidential.⁶ The court order limited the use of such confidential information.⁷ On June 16, 2021, the court granted, without objection, the plaintiffs’ motion to modify the protective order⁸ to create a Highly Confidential-Attorneys Eyes Only designation.⁹ Finally, on June 15, ₅₆₁2022,¹⁰ the court granted by consent a final modification to the order of protection,¹¹ adding ‘sensitive information of parties or witnesses, which is ordinarily kept confidential’ as a category of information which could be designated as confidential.¹² All … versions of the protective order required that ‘(a)ll persons having access to Confidential Information’ to ‘maintain it in a safe and secure manner.’ " (Footnotes added; footnotes in original; footnote omitted.)

"On August 4, 2022, in each of the [underlying] consolidated actions, the … court issued, sua sponte, an ₅₆₂order requiring … Pattis to appear and show cause at a hearing on August 10, 2022, ‘as to whether he should be referred to disciplinary authorities or sanctioned by the court directly; see … Practice Book [§] 2-45;¹³ regarding the purported release of medical records of the plaintiffs, in violation of state and federal statute and th[e] court’s protective order, to unauthorized individuals.’ The order also directed the clerk ‘to notify Chief Disciplinary Counsel, Brian Staines [disciplinary counsel], of the show cause hearing and … to immediately provide him with a copy of this order.’

Disciplinary counsel had previously filed an appearance." (Footnote added.) Lafferty v. Jones, 220 Conn. App. 724, 726, 299 A.3d 1161 (2023).

The court held the show cause hearing on August 10, 17 and 25, 2022. Pattis appeared and was represented by counsel, and disciplinary counsel also participated. During the August 10, 2022 hearing, the court, inter alia, (1) stated that it intended to conduct the disciplinary proceedings directly, rather than refer the matter to disciplinary authorities, (2) noted that it had "only learned of [the release of the plaintiffs’ confidential records to unauthorized individuals] by reading headlines,"¹⁴ and (3) posed questions that it wanted addressed by the evidence adduced during the hearing. On August 15, 2022, Pattis filed a motion to dismiss the ₅₆₃show cause order. On August 16, 2022, Pattis filed a motion to disqualify Judge Bellis from presiding over the disciplinary proceedings. On August 17, 2022, the court denied both motions.

The parties offered evidence during the show cause hearing on August 17 and 25, 2022. Pattis called six character witnesses. Disciplinary counsel called as witnesses (1) Christopher M. Mattei, the plaintiffs’ attorney, (2) Federico Andino Reynal, a Tex as attorney,¹⁵ and (3) Kyung S. Lee, another Texas attorney. Disciplinary counsel also called Pattis as a witness; however, following each of disciplinary counsel’s questions, Pattis invoked his right to remain silent pursuant to the fifth amendment to the United States constitution, article first, § 8, of the Connecticut constitution, and General Statutes § 51-35. The court also admitted several exhibits in full, including various email correspondence. The parties subsequently filed posthearing briefs.

On January 5, 2023, the court issued a memorandum of decision, determining, by clear and convincing evidence, that Pattis had violated rules 1.1, 1.15 (b), 3.4 (3), 5.1 (b), 5.1 (c), and 8.4 (4) of the Rules of Professional Conduct. As discipline, the court suspended Pattis from the practice of law for a period of six months.¹⁶ This writ of error followed.¹⁷ Additional facts and procedural history will be set forth as necessary.

₅₆₄I

[1] Pattis first claims that the trial court violated his rights to procedural due process pursuant to the fifth and fourteenth amendments to the United States constitution¹⁸ in initiating, sua sponte, disciplinary proceedings against him, pursuant to its inherent authority to discipline attorneys, on the basis of events that transpired outside of its presence, namely, the release of the plaintiffs’ confidential records to unauthorized individuals. We conclude that this unpreserved claim, although reviewable, fails on the merits under the third prong of State v. Golding, 213 Conn. 233, 239-40, 567 A.2d 823 (1989), as modified by In re Yasiel R., 317 Conn. 773, 781, 120 A.3d 1188 (2015).

The following additional procedural history is relevant to our resolution of this claim. The show cause order provided in relevant part that Pattis was "ordered to show cause … as to whether he should be referred to disciplinary authorities or sanctioned by the court directly, see … Practice Book [§] 2-45, regarding the purported release of medical records of the plaintiffs, in violation of state and federal statute and th[e] court’s protective order, to unauthorized individuals. …" In his motion to dismiss the show cause order, Pattis asserted, inter alia, that the court lacked subject matter jurisdiction or authority to pursue the show cause order because (1) § 2-45 requires the just cause to occur in the "actual presence of the court" and (2) the record reflected that the court learned of the release of the ₅₆₅plaintiffs’ confidential records to unauthorized individuals through media sources.¹⁹

On August 17, 2022, the court denied the motion to dismiss,²⁰ reasoning that, "[a]n attorney, as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. … An attorney must conduct himself or herself in a manner that comports with the proper functioning of the judicial system. … The court has the inherent authority to discipline attorneys. … Our rules of practice codify the authority of the court to summarily discipline an attorney, without the need to refer the attorney to the disciplinary authorities. … Practice Book [§] 2-45 provides that the court has...